Thomas v. United States Disciplinary Barracks

                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                            November 16, 2010
                                     PUBLISH                Elisabeth A. Shumaker
                                                                Clerk of Court
                   UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT



 ROCHESTER THOMAS,

             Petitioner-Appellant,
 v.                                                   No. 09-3291
 UNITED STATES DISCIPLINARY
 BARRACKS,

             Respondent-Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                  (D.C. NO. 5:02-CV-03265-RDR)


Submitted on the briefs

Melody Evans, Assistant Federal Public Defender for the District of Kansas, and
Cyd Gilman, Federal Public Defender for the District of Kansas, Topeka, Kansas
for Appellant.

Tanya Sue Wilson, Assistant United States Attorney for the District of Kansas,
and Lanny D. Welch, United States Attorney for the District of Kansas, Topeka,
Kansas for Appellee.


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


TYMKOVICH, Circuit Judge.
      Rochester Thomas, a military prisoner, filed a petition for a writ of habeas

corpus under 28 U.S.C. § 2241, which the district court dismissed. Thomas then

voluntarily abated his appeal in this court to petition a military court to consider

his claims of ineffective appellate counsel. The military court summarily denied

Thomas’s petition and, on remand, the district court again dismissed Thomas’s

habeas petition.

      The issue raised in this appeal is whether the military court’s summary

dismissal rests on adequate legal grounds. We have jurisdiction under 28 U.S.C.

§ 2253(a) and, having carefully reviewed the record and arguments on appeal, we

AFFIRM.

                                   I. Background

      A brief review of the procedural background will be helpful in

understanding the legal issues on appeal.

A. Initial Court-Martial Proceedings

      After Thomas deserted the Army in 1995, a military court convicted him in

absentia of various sex crimes and sentenced him to 50 years’ imprisonment.

Appellate review of Thomas’s court-martial continued despite his absence. Two

years later, Thomas was arrested in Germany after assaulting his girlfriend and

stabbing her roommate. For these crimes a military court sentenced him to 13

years’ imprisonment and a dishonorable discharge.




                                          -2-
      Shortly before Thomas’s arrest, his appointed military appellate defense

counsel in the court-martial proceedings submitted a petition to the Army Court

of Criminal Appeals (ACCA) challenging his convictions. After his arrest,

Thomas then filed a Grostefon 1 motion questioning his mental responsibility for

the sex crimes due to Gulf War Syndrome.

      The ACCA granted relief by dismissing several duplicative charges but

otherwise denied Thomas’s appeal. Thomas then petitioned the Court of Appeals

for the Armed Forces (CAAF) for a grant of review, again raising Grostefon

matters. Thomas’s petition did not contain a claim of ineffective appellate

counsel. After granting two motions to extend the time to file a supplement to the

petition, the CAAF affirmed the ACCA’s decision. The Supreme Court of the

United States later denied Thomas’s petition for a writ of certiorari. United

States v. Thomas, ARMY 9502100 (A. Ct. Crim. App. Dec. 8, 2000) aff’d, 55

M.J. 248 (C.A.A.F. 2001), cert. denied, 534 U.S. 1009 (2001), reh’g denied, 535

U.S. 952 (2002).

B. Petition for a Writ of Habeas Corpus

      In 2002, as a prisoner housed in the United States Disciplinary Barracks at

Fort Leavenworth, Thomas petitioned the district court in Kansas for a writ of

habeas corpus. Thomas later supplemented his petition with four allegations of

      1
        U.S. v. Grostefon, 12 M.J. 431 (C.M.A. 1982) (permitting a petitioner to
personally raise issues before the courts of military review even if his or her
appellate counsel thinks the issues lack merit).

                                        -3-
ineffective assistance by appellate counsel relating to his appeals to CAAF. 2 In

response, the government argued the ineffective appellate counsel claims could

not be reviewed because they were not raised during the CAAF appeal. In

dismissing Thomas’s habeas petition, the district court declined to examine his

ineffective appellate counsel claims because he failed to present them to the

military courts and because there was no prejudice in light of the apparent

strength of the prosecution’s case. Thomas v. U.S. Disciplinary Barracks, No. 02-

3265-RDR (D. Kan. July 28, 2004).

      Thomas appealed to this court, but voluntarily abated his appeal so he

could petition the ACCA for a writ of error coram nobis to consider his

ineffective appellate counsel claims. 3 The ACCA assigned counsel from its

      2
         Specifically, Thomas contended the military court erred in permitting
improper expert testimony, sentencing Thomas under duplicative charges,
permitting evidence of uncharged misconduct, and denying Thomas’s petition for
a new trial as untimely. He also contended his appellate counsel was ineffective
for failing to raise the ineffectiveness of his trial counsel in not challenging the
military court’s alleged errors or the standard used by the sanity board to
determine Thomas was competent to stand trial.
      3
        The ACCA has the authority to issue extraordinary writs under the All
Writs Act. 28 U.S.C. § 1651(a); Dettinger v. United States, 7 M.J. 216 (C.M.A.
1979). Because of their extraordinary nature, writs are issued sparingly, and a
petitioner bears an extremely heavy burden to establish a clear and indisputable
entitlement to extraordinary relief. Dew v. U.S., 48 M.J. 639, 648 (A. Ct. Crim.
App. Apr. 23, 1998) (citing Bankers Life & Cas. Co. v. Holland, 346 U.S. 379,
383–84 (1953)).

       Coram nobis is predicated on exceptional circumstances not apparent to the
court in its original consideration of the case. Dew, 48 M.J. at 649. Under coram
                                                                      (continued...)

                                         -4-
Defense Appellate Division to assist Thomas with the petition. Focusing on the

ineffectiveness claims, Thomas’s court-appointed counsel subsequently filed a

supplemental memorandum. In response, the government filed a 50-page

opposition brief, devoting 21 pages to the merits of Thomas’s claims. 4

      In February 2006, the ACCA summarily denied the petition. We then

remanded Thomas’s appeal to the district court for additional consideration of his

ineffective appellate counsel claims in the habeas proceedings. The district court

subsequently dismissed the petition, holding the ACCA’s summary disposition

was sufficient in light of the parties’ thorough briefing on the issue. Thomas v.

U.S. Disciplinary Barracks, 2009 WL 3125962 (D. Kan. Sept. 29, 2009).




      3
        (...continued)
nobis, a court can remedy an earlier disposition that is flawed because the court
misperceived or improperly assessed a material fact. Id. The error must be so
fundamental as to render the proceedings themselves irregular and invalid; in the
interests of promoting the finality of appeals, the standard for obtaining relief
through coram nobis is more stringent than the standard applicable on direct
appeal. Id.
      4
        The ineffective appellate counsel claims in Thomas’s ACCA petition are
based on his appellate counsel’s failure to raise Thomas’s claims of ineffective
assistance of trial counsel, to appeal the denial of Thomas’s motion for a
continuance, and to timely file a petition for a new trial. The government
responded to Thomas’s claims by contending the alleged failures were either not
erroneous, not prejudicial, not supported by the factual record, or predicated on
frivolous arguments.

                                        -5-
                                    II. Discussion

A. Standard of Review

      We review a district court’s denial of habeas relief de novo. Fricke v.

Sec’y of the Navy, 509 F.3d 1287, 1289 (10th Cir. 2007). In contrast, our review

of court-martial proceedings is very limited. See Burns v. Wilson, 346 U.S. 137,

142 (1953). “[W]hen a military decision has dealt fully and fairly with an

allegation raised in that application, it is not open to a federal civil court to grant

the writ simply to re-evaluate the evidence.” Id. The limited function of the civil

court is to determine whether the military have given fair consideration to each of

the petitioner’s claims. Id. at 145.

      To assess the fairness of the consideration, our review of a military

conviction is appropriate only if the following four conditions are met: (1) the

asserted error is of substantial constitutional dimension, (2) the issue is one of

law rather than disputed fact, (3) no military considerations warrant a different

treatment of constitutional claims, and (4) the military courts failed to give

adequate consideration to the issues involved or failed to apply proper legal

standards. Dodson v. Zelez, 917 F.2d 1250, 1252–53 (10th Cir. 1990). While we

continue to apply this four-part test, our recent cases have emphasized the fourth

consideration as the most important. See, e.g., Taylor v. Inch, 343 F. App’x 343,

346–47 (10th Cir. 2009) (affirming the denial of a habeas petition because the

military court gave adequate consideration to the petitioner’s claims).

                                          -6-
B. The ACCA’s Consideration of Thomas’s Claims

      Thomas argues the district court erred in applying the four-part test in

Dodson. He contends the court should have granted an evidentiary hearing

because the ACCA’s summary denial did not demonstrate full and fair

consideration of his ineffective appellate counsel claims. We disagree.

      The Tenth Circuit has consistently held full and fair consideration does not

require a detailed opinion by the military court. As we observed in Watson v.

McCotter,

      [w]hen an issue is briefed and argued before a military board of
      review, we have held that the military tribunal has given the claim
      fair consideration, even though its opinion summarily disposed of the
      issue with the mere statement that it did not consider the issue
      meritorious or requiring discussion.

782 F.2d 143, 145 (10th Cir. 1986). We also observed in Watson that we give

greater deference to the military than we do to state courts in relation to

determining ineffective assistance of counsel claims. Id. at n.3 (citing Burns, 346

U.S. at 142).

      Thomas draws factual distinctions between Burns and Watson to argue the

military court did not give full and fair consideration to his claims. In Burns,

lengthy opinion by the military courts demonstrated scrutiny of the trial record.

Burns, 346 U.S. at 144–45. Likewise, the military court in Watson granted oral

argument on the petitioner’s claims, and the military court’s opinion “expressly

considered” the evidence provided. Watson, 782 F.2d at 144.

                                         -7-
      In contrast, here the ACCA heard no oral argument and its order does not

spell out the reasoning for its dismissal. This lack of explicit detail is not fatal.

Our holding in Watson does not demand it. Nor do other circuits. In Armann v.

McKean, for example, the Third Circuit considered a case with similar facts in

which the CAAF neither granted oral argument on the petitioner’s claims nor

mentioned the claims in its one-sentence affirmation of the ACCA’s decision.

549 F.3d 279, 284 (3rd Cir. 2008). In that case, the government even failed to

submit a brief on the petitioner’s competency claim, although it addressed the

petitioner’s other claims. Id. at 294. Although the record did not explicitly

indicate the CAAF reviewed the petitioner’s claim, the circuit court declined to

“presume that the highest military court refused to consider the full record before

it prior to making its decision.” Id. at 295–96. The circuit noted that military

courts, like civilian courts, must diligently review all arguments presented by the

parties, which included the petitioner’s competency issue. Id. at 296. On the

question of the sufficiency of detail in the military court’s decision, the court

explained,

      [e]ven if we were to find it preferable that the CAAF issue a
      statement that it considered all claims including those personally
      raised by the defendant, we seriously doubt that the federal civilian
      courts have power to impose such a requirement on the highest
      miliary court. ‘Military law, like state law, is a jurisprudence which
      exists separate and apart from the law which governs in our federal
      judicial establishment.’




                                           -8-
Id. at 295 (quoting Burns, 346 U.S. at 140). 5

      We also decline to presume a military appellate court has failed to consider

all the issues presented to it before making a decision. Here, the record indicates

Thomas’s court-martial conviction received an abundance of consideration

throughout the 15 years of appellate review. The ACCA received over 65 pages

of briefing in relation to Thomas’s claims of ineffective assistance of appellate

counsel, at least 30 pages of which were directly focused on the merits.

      In its order dismissing the habeas corpus petition, the district court noted

      the parties thoroughly briefed the issues of ineffective assistance of
      counsel . . . . Those submissions contain a detailed explanation of the
      lengthy procedural history of this matter, the relevant facts, and a
      statement of the applicable standard of review for claims of
      ineffective assistance of counsel, that is, the test set out in Strickland
      v. Washington, 466 U.S. 668 (1984) and applied to such claims in the
      courts-martial.




      5
         Similarly, we routinely affirm summary dispositions of state courts in our
habeas review under the Antiterrorism and Effective Death Penalty Act (AEDPA),
28 U.S.C. § 2254(d), particularly when, as here, there is no material, non-record
evidence of ineffective assistance of counsel. See, e.g., Wackerly v. Workman,
580 F.3d 1171 (10th Cir. 2009); Wilson v. Workman, 577 F.3d 1284 (10th Cir.
2009). As already noted, we also give greater deference to military than we do to
state court proceedings in their dispositions of ineffective appellate counsel
claims. Burns, 346 U.S. at 142. While Burns predates AEDPA, the same
principles of comity and respect apply.

                                          -9-
Thomas, 2009 WL 3125962 at *3. Thus, the district court correctly applied our

precedent in determining that Thomas’s claims are not entitled to additional

review because the military courts gave them full and fair consideration. 6

      Although our review of court-martial proceedings is narrow, it is not

illusory. In Watson, we predicated our holding that full and fair consideration

does not require a detailed opinion or certain other indications that a military

court diligently reviewed the parties’ arguments. In a case where the briefing is

cursory and no indications of full consideration otherwise exist, we may reach a

different result. But the thoroughness and adequacy of the briefing in this case,

together with the broad deference we grant to the military in collateral review of

court-martial convictions, see Watson, 782 F.2d at 144, supports the district

court’s determination that Thomas’s claims received full and fair consideration by

the military court.

                                  III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s decision.




      6
         Based on our review, we conclude Thomas has not demonstrated any
potentially successful claim even if we were to reach the merits of his appeal.

                                        -10-